whistleblowers

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Postby admin » Tue Nov 29, 2005 7:27 pm

I guess I should respond to the last post. It is rather funny. Rather pathetic. Somewhat sad.

It suggests that I lost two jobs in the investment industry when in fact I have never lost a job in the investment industry or in any other industry. This is very easy to prove, based on employment records, IDA records of registration etc. What I have done is left one firm over ethical breaches and complaints against them (by me) and those are very well documented and clearly laid out in court documents filed in Alberta Court.

So the question remains, why are you so angry and sick? I have never met you. I don't think I know you. And yet you spread lies, hatred and bile. You quote, "get ready for armagedon"? This seems to suggest a health issue for which I am truly sorry. I hope you find a suitable outlet for your anger and that you learn to deal with it in a constructive manner.
Plese feel free to post anything you like, and I will feel free to clean up anything I like.
Best regards
the advocate
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Postby Guest » Tue Nov 29, 2005 7:09 pm

Anonymous wrote:Toodles, why should everything said be researched while rogue investment banker research analysts put out bogus reports. The investor advocacy movement is for everybody not just intellectual snobs. Many small investors aren't formally educated, english is a second language for some and some are seniors or disabled. How dare you exclude them from the process. Calling members of the media shills has long been accepted.


WTF? You think you can ban me Larry? I will just continue to post what I want, when I want. BTW, you and you're "gang" are more than pathetic; you're pointless. You lost your job because you could not cut it and then you got the axe at Scotia too. Next you lose everything in a prolonged defamation suit. Get ready for armagedon.
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Postby Guest » Sun Nov 27, 2005 11:10 pm

it might be time to repeat the source of some of the abuses that have some whistleblowers and advocates concerned. To clear up who the abusers might be.

From the Ontario Securities Commission Fair Dealing Model. Page ten of appendix F.

It states that one firm described the ability to increase margins and revenues to themselves by converting independant third party mutual funds over to proprietary funds. This would allow the entire management fee to go to the firm, rather than just a small slice.

The increase (benefit to the firm) is stated as being between twelve times and twenty six times greater by moving these assets from simply assets under "administration" to assets under "management".

It may (just may) be that certain firms and certain advisors were so taken by this potential for increase that they may have forgotten who they had an obligation to care for. Themselves first or the client first? One firm even has a multi million dollar advertising campaign surrounding the slogan "You First". Advocates simply ask, or demand that these promises be lived up to, rather than spoken, and then violated.

Advocates and those interesting in seeing that clients receive honest and professional service and advice would like to re-point out these facts as reminders to why some of speak out. A few observers to this forum have mistakenly named names, and tried to engage in less than mature dialogue to distract the forums from the underlying crime of abusing clients for gain. A few have gone so far as to claim that advocates are the true bullies. Some may be. I am certainly not a fan of how every advocate tries to get his or her message out. Just like some advisors are not very professional or ethical as advisors. I hope we can work together on mature discussion because we all seem to want the same thing. We all seem to want to rid the industry of bad actors who pee in the pool, whether it be the investment industry pool or the advocacy pool.

To lose mature discussion, fall into name calling, childish taunting, or name connection will only result in posts being deleted as they are discovered. Defamation law just does not allow each and every post to stand as it is written.
I know that most will understand the need for this, and some will not. thanks to all.

cheers
advocate
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Postby Guest » Sat Nov 26, 2005 1:06 pm

Smelly, as one of the "honest and honorable advisors", I think you're in the minority. Didn't a survey once reveal that something like 75% of advisors admitted they would be more likely to sell a fund if they received higher compensation. I think the "majority" of mutual fund salesmen would be shaking in their suits if a real investigation was ever done.
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Postby guestsmelly » Sat Nov 26, 2005 11:38 am

Excellent. I know Brian Mallard and the thousands of hard working, honest and honourable advisors in this country would welcome a fair unbiased review. But I can also think of one "advocate" currently languishing in jail in Sask because of his role, one ex-compliance officer and several current compliance staff members of a dealer and several representatives of the MFDA who would prefer there wasn't one as well as an extremely high profile Toronto journalist who would be deathly afraid of one and would do anything to stop one though.
So, in other words, it ain't gonna happen.
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Postby admin » Fri Nov 25, 2005 11:15 pm

A formal request has been made to request a Royal Commission into the allegations, investigations, handling, and results of events surrounding the death of the late Kent Shirley.

If you are following this situation and are concerned about how it was handled, you might take the time to contact your member of parliament or candidate for this position and inform them of your concerns.

cheers
advocate
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Postby Guest » Thu Nov 17, 2005 10:39 pm

Assante lawsuit bears a closer look
Mutual fund sales practices at centre of employment suit

Jonathan Chevreau
Financial Post


Thursday, August 26, 2004


The founding chair of Advocis is being sued by a former assistant to his financial planning practice at a division of Assante Corp.

In some ways, this is a classic David vs. Goliath tale. The goliath figure is Brian Mallard, a wealthy, often-quoted industry figure with multiple credentials and 32 years in the business.

He manages an Assante branch in Saskatoon. He also was -- from January, 2003 until May, 2004 -- the founding chair of Advocis, which represents Canada's financial advisors and insurance sales-people.

Facing him is a figurative David: Kent Shirley, a Saskatoon-based financial advisor who filed a constructive dismissal lawsuit in March. Shirley is suing Mallard personally, plus two companies bearing his name and Assante Financial Management Ltd.

Mallard's amended statement of defence and counterclaim, filed in Saskatoon in June, depicts Shirley as a troubled young man with a host of personal problems.

In an interview, Mallard indignantly dismisses the suit as an attempt to "extort" $50,000 from him: the amount Shirley borrowed from a bank to buy Assante stock from his (Shirley's) brother, also with Assante. Mallard cosigned the loan, pledging Assante stock as collateral.

Shirley won't speak on the record about his motivations, but far from shutting up and disappearing, the opposite seems to be happening.

What began as an obscure employment dispute is escalating into a case that could shed much light on sales practices in Canada's financial advice business.

Shirley provided extensive documentation to the Saskatchewan Securities Commission, the Mutual Fund Dealers Association (MFDA) and the RCMP.

His statement of claim alleges Mallard did not practise what he preached in his founding role at Advocis. Or as the document puts it in more formal language: "The Defendants condoned, engaged in and required Shirley to engage in unethical and/or illegal conduct."

The suit says the defendants "regularly breached codes, laws, rules and regulations and required him to do so as a condition of his continued employment." Shirley was expected to "participate in, and/or turn a blind eye to, the Unethical Practices."'

The alleged unethical practices include providing insider information to clients, making personal loans to clients, giving stock advice to clients, facilitating trades while not properly licensed to do so, selling personal stock to clients, and issuing personal guarantees on client accounts.

All those allegations are false, the defence argues, "brought solely to embarrass the Defendants and tarnish their reputations." The defendants "deny breaching ethical codes, laws, rules and regulations or requiring the Plaintiff to do so as a condition of his continued employment." Mallard's counterclaim also seeks damages for negligent or intentional misrepresentation and breach of contract.

In an interview, Mallard defends each charge, but admits he provided personal guarantees to some clients worried about bear market losses in 2000. However, he says this was acceptable practice before the MFDA set up shop.

Except for seven months' medical leave in 2002-2003, Shirley's suit says he was "employed full time" at Assante from 1996 until January, 2004.

Mallard denies Shirley was constructively dismissed; he says he was a contract worker rather than a salaried employee, and wasn't terminated but quit.

Either way, Shirley was afforded a bird's-eye view of internal incentives for advisors to replace third-party funds in client portfolios with more profitable in-house Assante product. He was also there as this strategy was parlayed into the ultimate sale of the firm to C.I. Fund Management.

It's this aspect of the case which has attracted the attention of Joe Killoran, who describes himself as "Canada's most feared investor advocate" [see www.investorism .com]. He believes the case illustrates how the industry is still not properly regulated.

Killoran focused on the sale of proprietary funds in a presentation last week to the Ontario Finance Committee's five-year review of the Ontario Securities Commission. He accused the OSC and other provincial securities commissions of "gross malfeasance" in the lax way they permit integrated fund manufacturer/ distributors to incent advisors to sell in-house proprietary funds.

This has become an issue in the United States, which is why Killoran forwarded Assante's pre-IPO business plan to New York State Attorney General Eliot Spitzer. Killoran drew Spitzer's attention to the sales practices of Assante's U.S. arm: Loring Ward International. Killoran says he contacted Spitzer because Canada does not have the whistle-blower protection laws the U.S. has had since 1989.

Killoran says the original business plan outlined payment of bonus Assante shares to advisors once they converted 40% of client assets to Assante's proprietary Optima funds. He says this practice skewed the provision of objective advice.

For his part, Mallard insists, "I have 500 clients that love me." In typically strong language, he adds he's "pissed off with a system that assumes every advisor is guilty."

He says the more interesting story is Assante's reaction to the suit, including the firing of at least one internal compliance officer.

Mallard says securities commissions have ceded authority to self-regulated bodies like the MFDA and the Investment Dealers Association. Rather than investigate alleged abuses themselves, the MFDA tells dealers they have received a complaint about an advisor. At its request, two Assante compliance officers audited the Saskatoon branch in May, Mallard says. One later moved to the MFDA.

This case may or may not end up swept under the rug. But from what I've seen, it merits closer attention.

© National Post 2004
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Postby Guest » Thu Nov 17, 2005 10:36 pm

Greg Weston
Tue, November 1, 2005

Whistleblowers paid

Careers ruined and lives overturned for revealing scandal
By Greg Weston




Former Prime minister Jean Chretien leaves his Ottawa home yesterday on the eve of the Adscam report's release. (Jonathan Hayward CP)
Today, as most Canadians try to digest Justice John Gomery's 1,400-page compendium of stomach-churning sleaze in high places, two of the rare heroes of Adscam can only read it and weep.

They are the whistleblowers, a federal auditor and a Montreal adman who tried to do right by exposing so much wrong in the sponsorship fiasco.

More than 10 years ago, government accountant Allan Cutler began complaining about all kinds of hanky-panky in the awarding of federal advertising contracts. If his red flags had been heeded, Adscam may never have happened.

Four years later, a Montreal advertising executive -- who has always insisted on anonymity -- started seeing millions of dollars flowing from the public purse into ad agency bank accounts for little or nothing in return.

In disgust, he quit his lucrative job, and secretly pointed the media to three of the telltale money-for-nothing contracts, a move that would eventually help blow the lid off the sponsorship scandal.

Ruined careers

But for all their best intentions, these two honourable Canadians found themselves plunged into a hell of ruined careers and overturned lives.

No matter how much today's much-anticipated report validates their claims, the cost of vindication makes any victory bittersweet at best.

As far back as 1994, Cutler began noticing a pattern of rule-bending, shady deals and even possible fraud in the awarding of federal advertising contracts.

At the time, Cutler's boss was Charles "Chuck" Guite, the Public Works executive who would subsequently run the $350-million sponsorship program.

In retrospect, it is hardly a surprise that Cutler's complaints to Guite fell on deaf ears.

Finally forced on to stress medication, Cutler wrote in his diary: "Ethics and integrity seem to be minor considerations when it comers to advertising contracts."

After months of Cutler's complaining that contracts with Montreal ad agencies were being falsified, two internal government audits backed his claims. The day after the second audit was completed, Cutler was summoned to Guite's office and told his auditing job was being declared "redundant."

In an interview yesterday from his home, where he is now retired, Cutler sounded something between relieved and resigned as he awaited Gomery's findings.

"What more can they do? I've been beaten up by the best," he said with a chuckle. "It ruined my career; there's no doubt about that. My name was mud."

The story of the whistleblower at the Montreal ad agency was much the same. Unable to condone the fraudulent ad contracts flowing through his firm, he walked out the door and straight into a career dead end.

The tight-knit Montreal ad community, by then swimming in sponsorship contracts, shunned him for not being a team player. For the same reason, the government advertising authorities blacklisted him from all federal business for the duration of the sponsorship program. Since then, the feds have banned him for his previous association with one of the Adscam companies.

No regrets

Today, like Cutler, he is more resigned than bitter over the enormous personal cost of his whistleblowing.

But what really bugs him is "how few people have been held accountable" for the $250-million Adscam mess.

"If a guy stole $250 from the corner store, justice would be a lot swifter and harsher than what's happening in the sponsorship thing," he said yesterday.

Perhaps Gomery's report will finally assign the blame where it is due. Maybe not. Either way, Allan Cutler has no regrets that he stood up for what he thought was right.

"Was it worth it? Yes. With everything that went on, I never regretted the decision at all. You have to take some responsibility for your life."

Whatever Gomery says today, Canadians owe a lot to the auditor and the adman
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Postby Guest » Tue Nov 15, 2005 8:41 am

Slapp suits are beginning to appear useful to those financial organizations who may have something to hide from the public. They may allow such organizations to avoid publiciity of less than client first behavior and to avoid the responsibility for same. It will be interesting to follow the activities and watch.
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Postby Guest » Tue Nov 15, 2005 8:34 am

There has been little legal action in Canada which would remotely qualify here. Further, there has never been any kind of legislation contemplated restricting the use of the courts for redress.


This statement appears to be an opinion. Doing a search on google.ca reveals a considerable amount of both interest and activity in Canada in these legal forms of abuse.

See the following website, which if only one of many.


http://www.nben.ca/friends/claim.htm

In 1997, Elizabeth Weir, Leader of the NDP in New Brunswick, introduced a bill to the New Brunswick legislature to protect the citizens and environmental groups of the province from corporate SLAPP suits. This bill was defeated on first reading. British Columbia however, did pass "The Protection of Public Participation Act" (Bill #10) into law, as reported in the Sierra Legal Defence Fund's Newsletter #28 dated September 2001. This bill specifically targeted SLAPP Suits. BC remains the only province in Canada to introduce such legislation.
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Postby Guest » Tue Nov 15, 2005 7:29 am

admin wrote:"SLAPP suits function by forcing the target into the judicial area where the SLAPP filer foists upon the target the expenses of a defense. The longer the litigation can be stretched out, the more the litigation can be churned, the greater the expense that is inflicted, the closer the SLAPP filer moves to success. The ripple effect of such suits in our society is enormous. Persons who have been outspoken on issues of public importance targeted in such suits will often choose in the future to remain silent".


This is a US problem. For those that are unaware the following definition will help.

A Strategic Lawsuit Against Public Participation, in which a corporation or developer sues an organization in an attempt to scare it into dropping protests against a corporate initiative. SLAPP suits typically involve the environment--for example, local residents who are petitioning to change zoning laws to prevent a real estate development might be sued in a SLAPP suit for interference with the developer's business interests. Many states have "anti-SLAPP suit" statutes that protect citizens' rights to free speech and to petition the government.

There has been little legal action in Canada which would remotely qualify here. Further, there has never been any kind of legislation contemplated restricting the use of the courts for redress. Individuals and organizations are held to be responsible for their actions and statements since there is no equivalent law to the US First Amendment.

The allegation of a SLAPP suit usually emanates from individuals and organizations who have engaged in questionable tactics that can give rise to liability under defamation laws. The plaintiff in a law suit will seek injunctive relief against the offending behavior. In order to achieve this, the plaintiff must provide proof that the continuation of the behavior will have an adverse effect on the ability of the plaintiff to have a fair trial or that the behavior will further damage the reputation of the plaintiff. Once injunctive relief is granted there may be little reason to continue with the litigation since it is the behavior that causes the problem. However, if the behavior has been so egregious, the plaintiff may pursue the litigation to gain a permanent injunction as part of the award of damages.
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Postby Guest » Mon Nov 14, 2005 11:15 pm

Anonymous wrote:
Anonymous wrote:you asked what section of the Telus Acceptable Use policy these posts violated. The section is as folows: ...

Defamation [/i]

I have highlighted the offending area but please note that it also covers any activity that goves rise to civil liaility to Telus.

Golly, Bri, you paid your lawyer half a million bucks and he still hasn't explained the doctrine of absolute privilege to you. Shiirley's complaint is a public document filed with a court. Republishing or linking to the document is not defamation in any common law court.

Get stuffed.


What you are referring to is qualified privilege not absolute privilege. Qualified privilege refers to statements made or published by an individual, not acting out of malice, which represent fair reporting of allegations, which if true, are in the public interest. Generally, qualified privilege applies to statements made by the media. However, while reporters my not have personal knowledge as to the truth or falsity of a statement, they are advised to examine the character of the source. If it can be shown that the reporter exhibited malice in reporting even a true statement, it is likely that a successful case can be made for defamation.

Absolute privilege refers to statements made by someone under oath or statements made by a politician in a session of the legislature or parliament. Statements made by someone under oath cannot result in defamation even if false but they can result in a civil charge of malicious prosecution or a criminal charge of perjury.

I would refer to two cases that are on point with regards to the publishing of false statements. Hill v. Church of Scientology of Toronto and Gutnick v Dow Jones.

The former is a Canadian case that has similarities to the actions of people on this board and others. Salacious statements have been made regarding the false allegations in the pleadings within a law suit that are intended to adversely affect the defendant’s reputation. These statements have been made maliciously. This was the exact circumstance in the Hill case. The only difference was the medium of publication. In the Hill case, the defendant made public statements about the plaintiff that were false and malicious. The internet has been the medium of communication here. It may come as a surprise to some, but the internet has no special dispensation from the laws regarding defamation. In Hill v. Church of Scientology of Toronto, the plaintiff was awarded $1.6 million dollars. This is the largest libel award ever upheld by the Supreme Court.

The other is an Australian case that indicates that defamation laws of one country are applicable to an entity that uses a foreign facility to publish offensive material. The case was appealed to the Australian High Court and the decision upheld. The case of Gutnick v Dow Jones resulted in a $440,000 USD out of court settlement.
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Postby admin » Mon Nov 14, 2005 6:17 pm

Characteristically, the SLAPP suit claims a huge amount of money, often alleging conspiracy or joint malfeasance to silence and intimidate as large a group as possible. They are often not designed to be won, but simply to force critics to hire lawyers and spend time and money fighting the lawsuit rather than pursuing their cause. If this goal is accomplished, then the SLAPP will have been effective even if it is eventually dismissed or abandoned. The mere threat of a SLAPP suit may have the effect of discouraging public debate. (SLAPP suits take the form of a civil suit for damages or injunctive relief filed against an individual or organization, and arise because of communications by the defendant(s) to a government body, official or the electorate.)

SLAPP suits can silence individuals and organizations who would otherwise make invaluable contributions toward issues of public importance. The fear created by a SLAPP suit influences many constituencies. Environmentalists, politicians, union leaders, advocates of any kind may be quieted by the risk of the expense, uncertainty and hardship involved in defending their right to voice their legitimate concerns in public debate. SLAPP suits silences the citizens upon whom our democracy is built and turns the judicial process into a weapon against public dissent.
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Postby admin » Mon Nov 14, 2005 6:14 pm

"SLAPP suits function by forcing the target into the judicial area where the SLAPP filer foists upon the target the expenses of a defense. The longer the litigation can be stretched out, the more the litigation can be churned, the greater the expense that is inflicted, the closer the SLAPP filer moves to success. The ripple effect of such suits in our society is enormous. Persons who have been outspoken on issues of public importance targeted in such suits will often choose in the future to remain silent".
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SLAPP SUITS

Postby admin » Mon Nov 14, 2005 6:05 pm

Slapp Suits

"A SLAPP suit is an abuse of the Court's process designed to stifle legitimate public debate", according to the Sierra Legal Defence Fund. SLAPP stands for "Strategic Lawsuits Against Public Participation." SLAPP suits can silence individuals and organizations who would otherwise make invaluable contributions toward issues of public importance. The fear created by a SLAPP suit influences many constituencies. Environmentalists, politicians, union leaders, advocates of any kind may be quieted by the risk of the expense, uncertainty and hardship involved in defending their right to voice concerns.


The Sierra Legal Defence Fund identifies the following characteristics of a SLAPP suit

the plaintiff is usually a mid to large-sized company
the suit claims enormous damages and generally seeks and injunction
the defendant has been speaking out with some success in an attempt to influence government policy or public perception; and
the issue is one of public interest or concern
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